Features — 03 May 2013 — by Adele Ramos

Legall ruling against 6th Constitutional Amendment “of no practical effect,” he also said

“…the minister can say to the landowner—whether you like it or not—I am making an order that the concession-holder go onto your land”

The Government of Belize does plan on appealing the April 16, 2013 decision of Justice Oswell Legall in which he declared six offshore petroleum concessions to be “unlawful, null and void,” as well as the April 19 decision of the judge in which he ruled certain portions of the Sixth Constitutional Amendment to be “unconstitutional, null and void.”

“I don’t think there is much practical consequence to any of those two judgments,” Prime Minister Dean Barrow commented at his press conference on Monday.

Barrow confirmed that Government’s legal counsels have already prepared documents for the appeal.

“I’ve seen our grounds of appeal and I believe that the lawyers described that as an aberrant ruling on the part of the judge, and I completely and unreservedly endorse that,” Barrow told the media.

The Environmental Protection Act (EPA) does say that you must have an Environmental Impact Assessment (EIA) once you are intending to proceed with a project. Barrow questioned, however, in a hypothetical case in which there are 4 bids for the petroleum concession, say for a million acres, how will government say, “Go do an EIA on that specific land before?”

“Now the PSA [Production Sharing Agreement] is not the project and the law does say as soon as somebody is granted a PSA, the minister can require an EIA. For him [Legall] to say that, ‘No, the EIA must come even before you grant the PSA,’ makes absolutely no sense at all in my mind,” Barrow stated.

Barrow said that “the judge went egregiously wrong” when he conflated the application for a production sharing agreement (PSA) with a contract.

He said that Government’s worry is that those with a particular intent will try to apply the ruling to terrestrial PSAs.

The concessionaires whose contracts were voided are Island Oil, Miles Tropical Energy Ltd., Petro Belize Company Ltd., Princess Petroleum Ltd., Providence Energy Belize Ltd., and SOL Oil Belize Ltd. These were all PSA’s signed by the previous administration, Barrow said.

“Once you have a PSA, the minister can say to the landowner—whether you like it or not—I am making an order that the concession-holder go onto your land for purposes of an EIA to determine, to shoot seismic or whatever… I am baffled as to how the judge could arrive at the position he did in that regard,” he further commented.

Justice Legall also ruled that the companies who were given the petroleum concessions did not meet the qualifications set out in law. The prime minister did not comment on this aspect of the ruling.

Barrow said that the judge did not issue a quashing order, despite the request made by the claimants. Neither did the suit enjoin the petroleum companies as interested parties, he said, describing this as “a grievous omission.” He did accept that the court has issued an injunction against the Government of Belize.

“That’s for the concession holder to determine whether they will continue with work under the PSA,” Barrow said.

The Prime Minister also commented on the subsequent ruling by Legall, in which he declared portions of the Sixth Amendment to the Belize Constitution to be “unconstitutional, null and void.” The provision in question stipulates that where instruments of appointment for judges are open-ended, those instruments would be deemed to be for a one-year term.

“[Legall] could only do that because he subscribes to this basic structure doctrine, which I believe is rubbish, which is currently before the Court of Appeal for a ruling,” Barrow said, adding that Justice Legall should not have pronounced on that because a ruling is imminent.

On the issue of tenure of judges to the age of 75, Barrow said that “as far as we’re concerned, that again is dicta (a statement of opinion or belief considered authoritative though not binding). That is not to be found in the four corners of the Constitution.”

“We will appeal, but in the meantime, it affects nothing practically” he said.

Barrow announced that Legall, who turns 68 on June 7, has written to the Governor-General to say that he will not be seeking renewal of his contract when it expires on his birthday.

He added that Legall was “unprompted,” and he doesn’t want anyone to say that he sent the judge away.

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